Blunt v. United States
| Decision Date | 08 July 1974 |
| Docket Number | No. 8459.,8459. |
| Citation | 322 A.2d 579 |
| Parties | Thomas Edward BLUNT, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Melvin M. Feldman, Rockville, Md., appointed by this court, for appellant.
Earl J. Silbert, U. S. Atty., John A. Terry, Richard A. Graham and Donald E. Robinson, Jr., Asst. U. S. Attys., for appellee.
Before REILLY, Chief Judge, and KELLY and NEBEKER, Associate Judges, in chambers.
In this case, appellant challenges not only the application to him of the pretrial detention statute, viz., D.C.Code 1973, § 23-1322, but also its constitutionality. The relevant portion of this Code provision reads:
(a) Subject to the provisions of this section, a judicial officer may order pretrial detention of —
(1) a person charged with a dangerous crime, as defined in section 23-1331(3), if the Government certifies by motion that based on such person's pattern of behavior consisting of his past and present conduct, and on the other factors set out in section 23-1321(b), there is no condition or combination of conditions which will reasonably assure the safety of the community;
(2) a person charged with a crime of violence, as defined in section 23-1331(4), if (i) the person has been convicted of a crime of violence within the ten-year period immediately preceding the alleged crime of violence for which he is presently charged; or (ii) the crime of violence was allegedly committed while the person was, with respect to another crime of violence, on bail or other release or on probation, parole, or mandatory release pending completion of a sentence; or
(3) a person charged with any offense if such person, for the purpose of obstructing or attempting to obstruct justice, threatens, injures, intimidates, or attempts to threaten, injure, or intimidate any prospective witness or juror.
Appellant has been ordered detained pending trial under subsection (a) (3) of the foregoing section of the Code, as one who "for the purpose of obstructing or attempting to obstruct justice, threatens, injures, intimidates, or attempts to threaten, injure, or intimidate any prospective witness or juror." He has a lengthy record of committing crimes of violence. At the time of his most recent arrest for the offense of felonious assault, he was on parole. He also has been charged with threatening a prospective witness and attempting to obstruct justice. The crime of violence for which he is presently charged is alleged to have been committed while he was on bail on a robbery charge. We reject appellant's contentions on appeal, including his constitutional argument, and affirm.
Appellant was first arrested on the present charge of assault with a dangerous weapon upon Miss Alysia Taylor on January 2, 1974. He was presented on January 3, at which time a bond in the amount of $5,000 was set. He was subsequently indicted and was arraigned on March 8, 1974, the $5,000 bond remaining. On May 8, appellant was reindicted for the same offenses that were charged in his original indictment along with certain additional charges, and was arraigned on May 17. Bond was set at $5,000 in the new case. At that time defense counsel asked the court for a reduction of bond. The government objected, stating that appellant had several times threatened Miss Taylor and her family, including threats on the days of his presentment and preliminary hearing. The court continued the hearing on the issue of bond to May 21, when counsel for the government, in addition to opposing the motion for reduction of bond, orally moved the court to commit appellant without bail under the provisions of D.C. Code 1973, § 23-1322. In support of its motion, the government proffered that appellant was charged with having made several threatening telephone calls to Miss Taylor and to another prospective witness, Edward Taylor. The government also produced certified copies of two of appellant's prior convictions, both for robbery, in 1967 and 1971, and called attention to appellant's record of six felony convictions and to the fact that the instant assault offense was assertedly committed while appellant was on parole for the 1971 robbery conviction and on bond in another case.
Defense counsel proffered that appellant had been employed when last released, that he would live with his mother if released, and that Bonabond, Inc. was willing to take third-party custody of him. No testimony was presented by either side, and appellant made no proffer to rebut the government's statement that he had threatened the complaining witness, nor did he attempt to contradict it.
On the basis of the proffered evidence the trial court made the following Findings of Fact:
1. The defendant, Thomas Blunt, was indicted, inter alia, for the crime of assault with a deadly weapon in this case. This is a crime of violence referred to in D.C.Code § 23-1322(a)(2) and as defined in D.0 Code § 23-1331(4).
2. The defendant has been convicted of a crime of violence within a ten year period immediately preceding the alleged crime of violence for which he is presently charged; to wit, a March 31, 1967 robbery conviction in Criminal Case No. 364-65 in the United States District Court for the District of Columbia, and a January 19, 1971 robbery conviction in Criminal Case No. 1248-70 in the United States District Court for the District of Columbia. D.C.Code § 23-1322(a) (2) (i).
3. The crime of violence for which the defendant is presently charged was allegedly committed while he was on bail with respect to another crime of violence, i. e., robbery in Superior Court Criminal Case No. 69638-73 which was pending at that time before Judge Korman. D.C.Code § 23-1322(a) (2) (ii).
4. Further, the crime of violence for which Thomas Blunt is presently charged was allegedly committed while he was on parole on his 1971 robbery conviction (# 1248-70) referred to above. D.C.Code § 23-1322(a)(2)(ii).
5. The defendant, while charged with the crime of assault with a deadly weapon allegedly has attempted to obstruct justice, threaten, injure or intimidate a prospective witness against the defendant in United States v. Thomas Blunt, Criminal Case No. 392-74. D.C.Code § 23-1322(a) (3).
6. The defendant has a lengthy criminal record, an outline of which is as follows:
1154-52 Housebreaking Dismissed
1155-52 Robbery Dismissed
1156-52 Robbery Dismissed
1157-52 Robbery 10 mos
1158-52 Robbery 10 mos
1231-52 Robbery Dismissed
117-62 UUV 1-3 yrs
1083-64 Grand Larceny 3-9 yrs
364-65 Robbery, Forgery
Uttering 5-15 yrs.
1248-70 Robbery 3-9 yrs.
255-71 Robbery Dismissed
All of the above are United States District Court for the District of Columbia cases.
69638-73 Robbery Not Guilty
33048-74 ADW; Assault with
Intent to Commit
Mayhem; Threats;
Obstruction of
Justice Pending
7. The Court has held a pre-trial detention hearing in accordance with D.C. Code § 23-1322(c); and the defendant has been represented by counsel, Melvin Feldman, and he was afforded full opportunity to present evidence by proffer or otherwise, to testify, present witnesses in his own behalf, and, through counsel, fully argue on the motion.
8. The Court finds by clear and convincing evidence that Thomas Blunt is a person described in D.C.Code § 23-1322(a)(1) and (2) and (3) and that there is no condition or combination of conditions of release which will reasonably assure the safety of the community. While the Government has failed to present evidence to show that there is substantial probability that the defendant committed the offense for which he is presently before the Court, the Government is not required to do so nor is the Court required to make any such finding with respect to this defendant under D. C.Code § 23-1322(a)(3).
9. The lengthy record of the defendant's serious criminal background, the gravity of the pending charge, the failure of the defense to offer any suitable structured program of release, the likelihood of flight due to the possible prison sentence the defendant faces if convicted on a third felony, the highly assaultive nature of his past offenses, and the doubtful reliability of the defendant's character, all lead this Court to a conclusion based on clear and convincing evidence that the pre-trial detention of the defendant is necessary to assure the presence of the defendant at his trial and to secure the safety of witnesses in his case and others in the community.1
Based on those findings, the court ordered that appellant be committed under the provisions of D.C.Code 1973, § 23-1322(a) (3).
Appellant contends that the trial court judge erred in applying the pretrial detention statute to him and, alternatively, that D.C.Code 1973, § 23-1322, is unconstitutional.
Appellant argues that the trial judge ordered his detention solely on the basis of a finding that he "allegedly has attempted to obstruct justice, threaten, injure or intimidate a prospective witness against the defendant. . .",2 and that this finding is not sufficient to detain a person under section 23-1322(a) (3). However, the trial judge also found "by clear and convincing evidence that Thomas Blunt is a person described in D.C.Code § 23-1322(a)(1) and (2) and (3). . ."3 This finding is sufficient for us to determine that the trial judge found the allegation that appellant threatened government witnesses to be true by clear and convincing evidence.
Appellant also urges that the trial court could not find that he had threatened any witnesses based on the evidence before it because the proffer of evidence by the government at the May 21 hearing was deficient. At that hearing the government represented only that appellant was charged with threatening government witnesses, not...
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